standard terms and conditions

FIESTAville Tent Rentals, (hereinafter referred to as “FIESTAville”) and the Renter (as defined herein), having entered into a Rental Agreement (as defined herein) agree as follows:

Article I.           interpretation

Section 1.01      Definitions

(1)   In the Rental Agreement, these Standard Terms and Conditions and the schedules attached hereto, the following terms and expressions have the following meanings:

(a)   “Agreement” means collectively the Rental Agreement, these Standard Terms and Conditions and the schedules attached hereto or referred to herein;

(b)   “Business Day” means every day except Saturday, Sundays and statutory holidays in the province of Ontario and the Dominion of Canada;

(c)   “Date” means the later of the dates specified in the Rental Agreement as those upon which it was (i) completed, and (ii) signed by either party;

(d)   “Delivery” means the transportation of the Equipment to, and the storage of the Equipment at, the Site by FIESTAville, and excludes any action undertaken to prepare the Equipment for use;

(e)   “Deposit” means that amount specified in the Rental Agreement;

(f)     “Equipment” means all items described in the Rental Agreement and all accessions, additions and attachments to same and other tangible personal property necessary to the performance of this Agreement, and where required shall include all portable fire extinguishers, exit signs, emergency lighting, fire alarm systems, water closets, and hand wash stations;

(g)   “Event Date” means that specified in the Rental Agreement;

(h)   “Government Documentation” means all necessary federal, provincial, municipal or other governmental or regulatory licences, permits or other documents or permissions that are required or incidental to this Agreement.

(i)     “Material Change” means either (i) with respect to the area to be covered by the Equipment, a variance of more than twenty-five percent (25%) from that area described in the Rental Agreement,  except that FIESTAville may provide the Renter with Equipment which exceeds the area described in the Rental Agreement by any variance where FIESTAville at its sole discretion determines the Site can accommodate such Equipment; or (ii) with respect to any other attribute of the Equipment or Service, where any note made by the Renter under “Additional Info” appears on the Rental Agreement and includes the phrase “must be,” “only” or which otherwise clearly indicates the Renter’s intention to receive certain Equipment or Service exclusively and without substitution, any deviance from such intention of the Renter.

(j)     “party” means either FIESTAville or the Renter, and “parties” means FIESTAville and the Renter collectively;

(k)    “Payment Price” means the total of all amounts specified in the Rental Agreement as modified in accordance with the terms of this Agreement;

(l)     “Pick-Up” means the retrieval of all Equipment from the Site by FIESTAville;

(m)  “Pick-Up Date” means that date specified in the Rental Agreement;

(n)   “Rental Agreement” means FIESTAville’s standard form bearing (i) such title, (ii) the particulars of the Equipment and Services solicited by the Renter, and (iii) the signature of each party.

(o)   “Renter” means the entity indicated in the Rental Agreement and shall include without limitation the person, natural or otherwise, thereby identified;

(p)   “Service” means the work necessary for the performance of FIESTAville’s obligations under this Agreement and shall include fire watch where required;

(q)   “Set-Up” includes the positioning, raising and securing of all Equipment at the Site for the purpose of making the Equipment ready for use;

(r)     “Set-Up Date” means that date specified in the Rental Agreement; and

(s)    “Site” means the intended location of the Set-Up specified in the Rental Agreement.

Section 1.02      Capitalized Terms

(1)   Each capitalized term has the meaning given to it in this Agreement.

Section 1.03      Entire Agreement

(1)   This Agreement constitutes the entire agreement between the parties with respect to all matters herein and its execution has not been induced by, nor do any of the parties rely upon or regard as material, any representations or writings whatsoever not incorporated herein and made a part hereof and may not be amended or modified in any respect except by written instrument signed by the parties hereto.

Section 1.04      Prevailing Agreement

(1)   This Agreement supersedes and replaces all previous agreements between the parties relating to this subject matter.

Section 1.05      Headings

(1)   The division of this Agreement into articles and sections, and the insertion of headings, is for the convenience of reference only and is not to affect its construction or interpretation.

Section 1.06      Extended Meanings

(1)   This Agreement is to be read with all changes in gender or number as required by context.

Section 1.07      References

(1)   These Standard Terms and Conditions and the schedules attached hereto incorporate and are subject to the provisions of the Rental Agreement and the provisions of that Rental Agreement are hereby incorporated into these Standard Terms and Conditions and the schedules attached hereto as if expressly set out herein.

(2)   Without extant specific intent to the contrary, the words “herein”, “hereto”, and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision of this Agreement.

(3)   Any reference to a statute is to such statute and to the regulations made pursuant to such statute as such statute may at any time be amended or modified and in effect and to any statute that may be passed that have the effect of supplementing such statute.

Section 1.08      Currency

(1)   All dollar amounts referred to in this Agreement are in lawful money of Canada.

Section 1.09      Severability

(1)   Where one or more provisions of this Agreement are found to be invalid, unenforceable or void by any court or tribunal of competent jurisdiction, the remaining provisions of this Agreement shall be deemed to be severable from the part so found and shall remain in full force and effect.

Section 1.10      Governing Law

(1)   This Agreement is subject to and shall be construed in accordance with the laws of the Province of Ontario, and each of the parties hereby consents to the exclusive jurisdiction of the courts of Ontario, with respect to any dispute arising under it.

Section 1.11      Schedules

(1)   The following schedules are attached to and form part of this agreement:

Schedule

Description

Schedule “A”

Consumer Protection Statement

Article II.         Equipment Rental

Section 2.01      Formation

(1)   In consideration of the premises and mutual covenants herein the receipt and sufficiency of which are hereby acknowledged, the parties have formed this Agreement.

(2)   The Renter acknowledges this document as a legal agreement between FIESTAville and the Renter, and that it confers specific rights and obligations unto each of the parties, and may modify rights to which either or both of the parties would otherwise be entitled.

Section 2.02      Deposit

(1)   The Renter shall pay the Deposit upon signing the Rental Agreement.

(2)   FIESTAville is under no obligation to the Renter until the Deposit has been received by FIESTAville.

(3)   FIESTAville acknowledges that any amount tendered by the Renter is to be held by the FIESTAville as a partial payment of the Payment Price.

(4)   Where FIESTAville voluntarily fails, refuses, or notifies the Renter of its intention to refuse, to meet its obligations under this Agreement, FIESTAville shall return the Deposit forthwith to the Renter without demand therefor.

(5)   Where the Renter voluntarily fails, refuses, or notifies FIESTAville of its intention to refuse, to meet its obligations under this Agreement, the Renter shall forfeit the Deposit to FIESTAville, and the amount of the Deposit shall be received by FIESTAville as a partial payment of the Payment Price, and not as a penalty, and FIESTAville shall reserve the right to further purse full compensation as per the provisions of this Agreement.

Section 2.03      Equipment

(1)   FIESTAville shall provide the Equipment.

(2)   All Equipment shall remain the property of the FIESTAville.

(3)   FIESTAville shall have, at its sole discretion, the right to substitute functionally equivalent Equipment and/or Service for that described in the Rental Agreement, so long as no such substitution is a Material Change.

(4)   Any party proposing a Material Change shall notify the other party forthwith and in any event within two (2) Business Days of any proposed Material Change to the Rental Agreement, in writing, and such notification shall:

(a)   disclose all proposed changes;

(b)   include the Rental Agreement with said proposed Material Changes indicated, if possible, on the face thereof, otherwise in a separate document;

(c)   specify the date the proposal was made, and a date for the acceptance of said proposal by the other party;

(d)   specify what the effect will be if the other party does not respond to the notice;

(e)   allow for a means of response that shall involve no cost to the other party; and

(f)     be given in a manner consistent with this Agreement.

(5)   In the event of a Material Change proposed by FIESTAville, the Renter may:

(a)   cancel this Agreement, or

(b)   retain this Agreement, mutatis mutandis, at a cost not to exceed the Payment Price.

(6)   In the event of a Material Change proposed by the Renter, FIESTAville may:

(a)   assent to the Material Change and reasonably alter the Payment Price; or

(b)   insist upon the continued performance of this Agreement without modification.

Section 2.04      Price and Payment

(1)   All amounts payable under this Agreement shall be paid in cash unless otherwise specified and agreed to by the parties.

(2)   Any amount payable and outstanding under this Agreement shall come due upon Delivery, and thereupon, the Renter shall pay the full amount shown on the Rental Agreement and all other amounts payable under this Agreement upon demand by FIESTAville.

(3)   All amounts payable by the Renter under this Agreement are subject to final audit by FIESTAville, and where there is any under-payment or over-payment, the amount of the discrepancy shall be paid or refunded, as the case may be, to the party entitled to that amount.

(4)   The Renter shall be personally liable for the payment of all amounts required to be paid under this Agreement, despite the agreement by any credit card issuer or other person to assume liability for the payment of those amounts, and where a credit card issuer or other person who has assumed liability defaults in payment, the Renter shall pay the amount owed upon demand by the corporation.

(5)   The Renter consents to the reservation of credit by the credit card issuer designated in the Rental Agreement up to the estimated charges payable under this Agreement, and FIESTAville may process a credit card voucher for the amount owed to FIESTAville under this Agreement.

(6)   Where Equipment is delivered to the Site in accordance with this Agreement and the Equipment or a portion thereof is not subsequently used by the Renter, FIESTAville will not issue credit to the Renter for such non-use, including where upon Delivery or thereafter, the Renter requests that Equipment or a portion thereof not be Set-Up.

(7)   The Renter may not set-off for any reason any amount payable to FIESTAville under this Agreement.

(8)   Where the Renter fails or refuses to pay an amount payable under this Agreement at the time when that payment is due or payable, the Renter shall be liable to pay interest on the unpaid amount at an annual rate of 24 per cent per annum, compounded monthly not-in-advance, and payable from day to day, both before and after judgment, until the receipt of full payment by FIESTAville.

(9)   The Renter shall pay on demand all costs, including legal costs on a solicitor-and-client basis, incurred by the corporation in the exercise of its rights under this Agreement, and in particular, with respect to the recovery of the Equipment or the enforcement of any obligation of the Renter to pay any amount under this Agreement.

Section 2.05      Site Visit

(1)   Where FISTAville in its sole discretion deems that the Site must be inspected prior to Delivery, the Site shall be inspected by FIESTAville in the presence of the Renter.

(2)   FIESTAville shall complete or arrange for the location of utilities at the Site, as required.

Section 2.06      Time, Place and Manner of Delivery

(3)   The Renter shall ensure the Site is prepared for Delivery and Set-Up on the Set-Up Date including, without limitation, ensuring the Site is free of all obstructions to ingress and egress from the Site.

(4)   Delivery of the Equipment shall be made to the Site on the Set-Up Date, or at other such time as the parties may agree.

(5)   Delivery of the Equipment by vehicle shall be performed by FIESTAville or its authorized representative.

(6)   Where FIESTAville has not received payment of the Payment Price in full, FIESTAville may at its sole discretion delay or refuse Delivery and/or Set-Up, and such delay or refusal shall not relieve the Renter of the obligation to pay the Payment Price in full.

(7)   Where upon Delivery or thereafter, the Renter requests that Equipment or a portion thereof not be Set-Up:

(a)   the Renter shall forfeit the use of such equipment; and

(b)   FIESTAville may thereafter remove such Equipment from the Site at its discretion at any time up to and including the Pick-Up Date.

Section 2.07      Inspection of Equipment

(1)   Set-Up shall be substantially complete on or before the Event Date.

(2)   Forthwith upon the substantial completion of Set-Up, the Renter shall, in the presence of a representative of FIESTAville, inspect the Equipment for the purpose of determining whether the Equipment conforms to this Agreement.

(3)   If, upon inspection, the Equipment is defective, deficient, or constitutes a Material Change,

(a)   the Renter shall notify FIESTAville’s representative forthwith;

(b)   FIESTAville shall repair, replace or remediate the Equipment without further liability to the Renter;

(c)   where FIESTAville fails to remediate within a reasonable time, the Renter may

                        i.         reject the Equipment, and

                       ii.         treat this Agreement as repudiated.

(4)   Where the Renter fails or refuses to inspect the Equipment within the above established time frame, or having inspected any Equipment, fails or refuses to notify FIESTAville of any deficiency, defect or Material Change at said time, the Renter shall be deemed to have inspected and approved the Equipment, in which case the Renter shall have no claim for damages or other compensation in respect of any discrepancy between the Equipment supplied and the Equipment ordered.

(5)   Where the Renter takes any step after inspecting the Equipment that is inconsistent with its rejection, the Renter shall be deemed to have accepted the Equipment and shall pay the Payment Price in full.

(6)   Payment of the Payment Price prior to inspection shall not constitute an acceptance of same.

Section 2.08      Term

(1)   This Agreement shall be effective as of the Date and shall run until the earlier of the following events:

(a)   Pick-Up is complete; or

(b)   one party notifies the other its intention to terminate this Agreement in accordance with the terms herein.

(2)   Until Pick-Up is complete, the Renter shall grant to FIESTAville such access to the Site as is reasonably necessary.

(3)   Where the Renter in any way prevents Pick-Up, and FIESTAville has not consented to a delay in Pick-Up, the Renter shall be deemed to be in unlawful possession of the Equipment, and in any such case:

(a)   the Renter shall be deemed to have waived any right to claim or recover any damages under this Agreement, including those arising directly or indirectly from the enforcement by FIESTAville of any of its rights to the Equipment; and

(b)   FIESTAville or its agents may repossess the Equipment, and for that purpose may enter any land, building or place where the Equipment is situated and may break any lock where necessary to gain entry to same.

(c)   For greater certainty, this provision shall survive the termination of this Agreement.

Section 2.09      Subcontractors

(1)   The Renter acknowledges that FIESTAville may subcontract such portions of the Equipment and Services to be provided by FIESTAville under this Agreement as FIESTAville considers appropriate, and the Renter hereby consents to the performance of the obligations of FIESTAville by such subcontractors, but FIESTAville shall be responsible for the Equipment and Services of any such subcontractor as if the Equipment and Services were provided by FIESTAville itself.

Section 2.10      Insurance

(1)   The Renter agrees and acknowledges that it has a general liability policy of insurance that covers all risks and perils associated with the use of the tent at the Site.

Section 2.11      Government Documentation

(1)   The Renter shall:

(a)   be a party to all Government Documentation necessary for the performance of this Agreement;

(b)   be responsible for obtaining all Government Documentation, including all costs associated with same; and

(c)   where a Government Document must be displayed in a specific form and/or manner, ensure that it is so displayed.

(2)   FIESTAville shall make all reasonable efforts to obtain all Government Documentation on the Renter’s behalf at the Renter’s expense.

Section 2.12      Cancellation without Default

(1)   If this Agreement is made more than ten (10) days prior to the Set-Up Date, the Renter may cancel this Agreement by giving FIESTAville notice of its intention to cancel this Agreement within ten (10) days of the Date of this Agreement, which notice shall take effect immediately.

(2)   FIESTAville may cancel this Agreement by giving written notice to that effect to the Renter prior to the Event Date, which notice shall take immediate effect.

(3)   Upon cancellation by either party in accordance with the provisions of this Section:

(a)   the parties shall not be obliged to any further performance under this Agreement; and

(b)   FIESTAville shall, within ten (10) Business Days, refund to the Renter any payment made under this Agreement in excess of the Deposit

(4)   The cancellation of this Agreement shall not release, discharge or otherwise affect the obligations contained in the Articles herein which the parties have expressly agreed shall survive the termination of this Agreement.

Article III.        Covenants

Section 3.01      FIESTAville Covenants

(1)   FIESTAville covenants and agrees with the Renter that it shall:

(a)   supply Equipment and Services in accordance with this Agreement; and

(b)   observe all laws and conform to all valid requirements of any governmental authority with respect to this Agreement;

Section 3.02      Renter Covenants

(1)   The Renter covenants and agrees with FIESTAville that it shall:

(a)   attend at the times and places required by this Agreement;

(b)   permit FIESTAville, its agents and employees to enter the lands upon which the Equipment is located for the purposes of Delivery, Set-Up, making any repairs or alterations that FIESTAville may consider necessary or advisable, and Pick-Up;

(c)   permit FIESTAville, its agents or employees to show the Equipment to prospective customers during the course this Agreement, irrespective of whether any of those prospective customers are competitors or potential competitors of the Renter;

(d)   ensure that the Equipment is at all times operated in a safe manner, without risk to health or the environment;

(e)   have an evacuation plan;

(f)     observe all laws and conform to all laws and any valid requirements of any governmental authority with respect to the use of the Equipment;

(g)   as at the Pick-Up Date, have removed all property of the Renter and of any person other than FIESTAville from the Equipment, and where the Renter fails or refuses to remove any property from the Equipment, FIESTAville shall not be liable to the Renter or any other person with respect to that property, and the Renter shall indemnify and save FIESTAville harmless from and against any claim, proceeding, damages, liability or cost, including legal costs on a solicitor and client basis, arising from a claim by any other person with respect to any such property;

(h)   not sell or create any mortgage, charge, lien or other encumbrance upon or purporting to extend to the Equipment;

(i)     shall hold FIESTAville harmless for the routine and consequential effects of delivery, Set-Up, Pick-Up, and the presence of the Equipment at the Site, including without limitation, markings, holes, discolouration or depressions on or to surfaces;

(j)     pay all amounts owing to FIESTAville under this Agreement at the time when due; and

(k)    on default, deliver up quiet possession of the Equipment, free from encumbrances, to FIESTAville.

Article IV.       Warranties

Section 4.01      FIESTAville Warrants

(1)   FIESTAville expressly warrants to the Renter that:

(a)   FIESTAville has all requisite powers, capacities, licences and permissions under the laws applicable to it to enter into, exercise its rights and perform and comply with its obligations under this Agreement, and that all actions, conditions and things have been done, taken or fulfilled with respect thereto, that are required by law, contract or otherwise;

(b)   FIESTAville is not a party to any agreement under the terms of which it is prohibited or restricted from entering into any of the obligations assumed, liabilities imposed, or restrictions accepted by FIESTAville under this Agreement;

(c)   FIESTAville has and throughout this Agreement shall continue to have the skill, experience, materials and personnel required to enable it to perform and comply with its obligations under this Agreement;

(d)   the Equipment is suitable for the purposes of the Rental Agreement and meets or surpasses all regulatory standards of the jurisdiction within which the Site is situate;

(e)   timely Delivery and Set-Up shall be of the essence, and the failure by FIESTAville to Set-Up at the Site by no later than the Event Date shall entitle the Renter to terminate this Agreement and to recover any amount of damages recoverable under this Agreement and incurred by the Renter; and

(f)     FIESTAville shall provide at its expense all repairs, inclusive of labour, parts and other materials, required in respect of any of the Equipment subject to the Rental Agreement during the term of this Agreement.

Section 4.02      Renter Warrants

(1)   The Renter expressly warrants to FIESTAville that:

(a)   the Renter has all requisite powers, capacities, licences and permissions to enter into, exercise its rights and perform and comply with its obligations under this Agreement, and that all actions, conditions and things have been done, taken or fulfilled with respect thereto, that are required by law, contract or otherwise;

(b)   the Renter is not a party to any agreement under the terms of which it is prohibited or restricted from entering into any of the obligations assumed, liabilities imposed, or restrictions accepted by the Buyer under this Agreement;

(c)   where the Renter makes this Agreement on behalf of another, the Renter shall remain bound by this Agreement and shall be liable for the performance or non-performance of the other as if that performance or non-performance was that of the Renter itself;

(d)   where the Equipment or any portion thereof is damaged to an extent that it interferes with the operation of same, the Renter shall discontinue use;

(e)   the Renter shall report any loss, theft, destruction or damage to or of the Equipment to FIESTAville immediately upon its occurrence, and shall provide such assistance as FIESTAville may reasonably request in connection with the investigation of that occurrence;

(f)     the Renter shall return the Equipment in the same condition as the condition in which it was received, reasonable wear and tear excepted;

(g)   the Renter shall not use the Equipment for any purpose other than that disclosed in the Rental Agreement, and shall not permit the Equipment to be used in a manner that requires Government Documentation without such Government Documentation, including without limitation, heating or cooking;

(h)   the Renter shall not install any additional or replacement item or device on the Equipment, or modify the operational characteristics or properties of the Equipment, remove any attachment or device installed on the Equipment, attempt or effect any repair, remediation or replacement of the Equipment or any portion thereof or remove the Equipment from Site; and

(i)     the Equipment is for the purposes of temporary shelter only and is not intended to act as a shelter from extreme weather, and where inclement weather may interfere with the continued use of the Equipment, the Renter shall immediately discontinue use of same, and agrees to hold FIESTAville harmless for damage to persons or property caused as a result of inclement weather, which shall include, without limiting the generality of the foregoing, high winds and heavy rains.

Article V.         Default

Section 5.01      By FIESTAville

(1)   The following are acts or events of default relating to FIESTAville:

(a)   the delivery of Equipment effecting a Material Change to the Rental Agreement; and

(b)   a breach of any warranty or covenant of FIESTAville or where FIESTAville otherwise defaults in the observance or performance of anything required to be done by this Agreement.

Section 5.02      By the Renter

(1)   The following are acts or events of default relating to the Renter

(a)   where the Renter wrongfully rejects any Equipment or revokes any previous acceptance, including deemed acceptance, of such Equipment;

(b)   where the Renter defaults in the payment of any amount owed by it to FIESTAville under this Agreement, whether in respect of the Payment Price, or any cost payable to FIESTAville under this Agreement, or where the Renter otherwise defaults in the observance or performance of anything required to be done by this Agreement;

(c)   where any formal or informal proceeding for the dissolution of, liquidation of, or winding up of, the affairs of the Renter is instituted by or against the Renter or where a resolution is passed or any other act undertaken for the winding up of the Buyer;

(d)   where the Renter ceases or threatens to cease to carry on its business, or where the Renter makes or agrees to make a bulk sale of its assets;

(e)   where the Renter defaults in payment of any indebtedness or liability to a Bank or other lending institution, whether secured or not;

(f)     where the Renter is adjudged bankrupt or becomes insolvent, or a petition in bankruptcy is filed against the Renter or where the Renter makes an assignment for the general benefit of creditors or applies for relief under the Companies’ Creditors Arrangement Act, or where proceedings of any type are instituted in any jurisdiction in respect of the alleged insolvency or bankruptcy of the Renter;

(g)   where any certificate, statement, representation, warranty or audit report made in connection with this Agreement was false or misleading in any material respect at the time of its making, or where any material fact which ought to have been disclosed in the certificate, statement, representation, warranty or audit report was not disclosed, or where the Renter fails to inform the Seller forthwith of any such material fact.

Article VI.       Effect of Breach

Section 6.01      Deemed Conditions

(1)   Each warranty and covenant made by the parties shall be deemed to constitute a condition of this Agreement.

(2)   Except as expressly provided in this Agreement, all express or implied warranties, conditions and obligations of FIESTAville, whether statutory or otherwise, including those concerning the quality of the Equipment or their fitness for any purpose, are excluded.

Section 6.02      Where FIESTAville in Default

(1)   Where FIESTAville is in default of this Agreement, the Renter may elect, in its absolute discretion, by written notice to FIESTAville, to:

(a)   treat the default as a repudiation of the Agreement by FIESTAville and terminate the Renter’s obligations under the Agreement, reject the Equipment and sue for damages; or

(b)   continue the Agreement in effect, accept the Equipment, but sue for damages.

(2)   In exercising its rights under this Section, the Renter may elect to receive part of the Equipment to be delivered under the Agreement without affecting its right to reject other Equipment to be delivered under the Agreement.

Section 6.03      Where Renter in Default

(1)   Where the Renter is in default of this Agreement, the Seller may:

(a)   withhold delivery of any Equipment;

(b)   terminate its obligation to supply Equipment under this Agreement, by giving written notice to that effect to the Renter;

(c)   recover by action all damages arising from the default; and

(d)   seek such other remedies as may be provided by law.

Article VII.      Liability

Section 7.01      Liability of Renter

(1)   The risk of any theft, loss, damage or destruction, however caused, of the Equipment shall be borne by the Renter. The Renter shall pay all damages, costs and liabilities incurred by FIESTAville or to which FIESTAville is subject by reason of the use of the Equipment by the Renter or any person authorized for use by the Renter.

(2)   Without prejudice to its rights under this Agreement, all of FIESTAville’s obligations under this Agreement, including any insurance obligations, are void where the Equipment is used in violation of this Agreement.

Section 7.02      Indemnity

(1)   The Renter indemnifies and shall hold FIESTAville harmless from and against all claims, actions, suits proceedings, liabilities, costs and expenses, including legal costs on a solicitor and client basis, resulting from any use or installation of the Equipment by the Renter.

(2)   Without limiting the foregoing, the Renter shall be responsible for and indemnifies and shall hold FIESTAville harmless against any liability or cost arising by reason of the removal of the Equipment from any building, structure, works or land, or the disconnection of the Equipment from any thing.

Section 7.03      Limitation of Liability

(1)   FIESTAville shall not be liable to the Renter for any indirect, special, incidental, consequential, punitive or exemplary damages, loss of goddwill or business profits, work stoppage, data loss, computer failure or malfunction, or any and all other commercial damages arising in connection with the furnishing of Equipment and/or Services by FIESTAville to the Renter, or its performance or non-performance, or for any failure by FIESTAville to honour any term of this Agreement.

(2)   In no case shall the liability of FIESTAville, whether in contract, tort or otherwise, exceed the Payment Price.

(3)   Neither party shall be liable to the other on any basis in contract, tort or otherwise where the inability of that party to perform its obligations under this Agreement is due to the act or omission of any person beyond the control of that party or its affiliates.

Article VIII.    General

Section 8.01      Further Assurances

(1)   Each of the parties shall provide to the other such documents or further assurances as the other party may reasonably request in order to evidence or carry out the intent of the parties under this Agreement.

Section 8.02      Credit Investigation

(1)   The Renter authorizes FIESTAville to obtain such factual and investigative information regarding the Renter from others as permitted by law, and to furnish other credit grantors and any credit bureau particulars of this Agreement and the Renter’s subsequent credit experience with FIESTAville and to retain any application made with respect to this Agreement for FIESTAville’s records. The Renter acknowledges that a report containing credit information may or will be referred to in connection with this Agreement or any renewal or extension thereof.

Section 8.03      Force Majeure

(1)   Neither party is responsible for damages caused by delay or failure to perform undertakings under the terms of this Agreement when the delay or failure is due to fires, strikes, floods, acts of God or the Queen’s enemies, lawful acts of public authorities, or defaults caused by common carriers, which cannot reasonable be foreseen or provided against.

Section 8.04      Waiver

(1)   Failure by either party to exercise any of its rights, powers or remedies hereunder or its delay to do so does not constitute a waiver of those rights, powers or remedies. The single or partial exercise of a rights, power or remedy does not prevent its subsequent exercise or the exercise of any other right, power or remedy.

Section 8.05      Remedies

(1)   The rights, powers and remedies of FIESTAville in this Agreement are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to FIESTAville.

Section 8.06      Transmission by Electronic Means

(1)   Delivery of this Agreement by facsimile, telecopy, or electronic transfer constitutes valid and effective delivery.

Section 8.07      Amendments in Writing

(1)   This Agreement shall not be deemed to be or construed as having been amended as a result of any oral communication between the parties or as a result of any practice of the parties, but all amendments to this Agreement shall be expressly agreed to in writing and shall be signed by both parties, provided that any such agreement may be executed in counterpart form.

(2)   The Renter acknowledges that no representative of FIESTAville has the authority to waive, add to, delete from or otherwise vary or amend the provisions of this Agreement in a manner other than as described in this Section, and no such purported waiver, addition, deletion, variation or amendment shall be binding upon FIESTAville.

(3)   Each amended agreement made in writing in accordance with this Section shall include a Rental Agreement, Standard Terms and Conditions and the attachments thereto, mutatis mutandis.

Section 8.08      Rental Relationship

(1)   The Renter shall not be considered or construed to be an agent, subcontractor or employee of FIESTAville by reason of this Agreement or the provision of Equipment and Services hereunder.

Section 8.09      Joint and Several Obligations

(1)   If more than one party executes this Agreement with FIESTAville, the obligations of such parties are hereunder joint and several.

Section 8.10      Binding Effect and Enurement

(1)   This Agreement enures to the benefit of and binds the parties and their respective heirs, executors, administrators, personal and legal representatives successors and permitted assigns.

Section 8.11      Assignment

(1)   This Agreement is not assignable without the prior written consent of FIESTAville. Any attempt to assign any of the rights, duties, or obligations of this Agreement without written consent is void.

(2)   Where the Renter wishes to assign its rights to another person, it shall obtain from that other person a binding undertaking in favour of FIESTAville, under which the proposed assignee undertakes to comply with all provisions of this Agreement as if it was an original signatory to it.

Section 8.12      Notice

(1)   Any notice, instruction, demand or document that is permitted or required to be given, delivered or sent under this Agreement or by law shall be deemed to have been validly given, delivered or sent if delivered personally or if given by telex or fax where the intended recipient is equipped to receive such telecommunication or if sent by prepaid courier or registered mail to the intended recipient at the address set out in the Rental Agreement.

(2)   Either party may change its address for service under this Agreement by giving notices to the other party in accordance with this Section.

(3)   In the absence of evidence of prior receipt, any notice, instruction, demand or document shall be deemed to have been received by the intended recipient:

(a)   the same day, if delivered by personal service;

(b)   the next Business Day, if delivered by telex or fax, provided the intended recipient is equipped to receive such telecommunication; and

(c)   on the fifth Business Day next following the date on which it was sent, where sent by prepaid courier or registered mail.

Section 8.13      Survival of Certain Provisions

(1)   Despite the amendment, cancellation, renewal, re-negotiation or expiration of this Agreement, the provisions of Sections 2 and 8, and the respective obligations of the parties under those provisions shall remain in effect indefinitely and shall continue to bind the parties, until the parties otherwise expressly agree in writing.

Section 8.14      Time of the Essence

(1)   Time shall be of the essence in all respects of this Agreement.

 

 

SCHEDULE “A”

This Agreement may be subject to the Consumer Protection Act, 2002, SO 2002, c 30, Sch A and FIESTAville may have a corresponding statutory obligation to include the following Consumer Protection Statement, notwithstanding, FIESTAville provides no warranty and makes no representation as to the applicability of the Consumer Protection Act  to this Agreement, and by including the following Consumer Protection Statement, shall not be seen as having waived or abandoned any legal right or remedy to which is entitled under this Agreement or otherwise, nor is it the intention of the parties that the following Consumer Protection Statement shall vary, modify or otherwise amend this Agreement, except to the extent required by law:

Your Rights under the Consumer Protection Act, 2002

You may cancel this agreement at any time during the period that ends ten (10) days after the day you receive a written copy of the agreement. You do not need to give the supplier a reason for cancelling during this 10-day period.

If the supplier does not make delivery within 30 days after the delivery date specified in this agreement or if the supplier does not begin performance of his, her or its obligations within 30 days after the commencement date specified in this agreement, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.

If the delivery date or commencement date is not specified in this agreement and the supplier does not deliver or commence performance within 30 days after the date this agreement is entered into, you may cancel this agreement at any time before delivery or commencement of performance. You lose the right to cancel if, after the 30-day period has expired, you agree to accept delivery or authorize commencement of performance.

In addition, there are other grounds that allow you to cancel this agreement. You may also have other rights, duties and remedies at law. For more information, you may contact the Ministry of Consumer and Business Services.

To cancel this agreement, you must give notice of cancellation to the supplier, at the address set out in the agreement, by any means that allows you to prove the date on which you gave notice. If no address is set out in the agreement, use any address of the supplier that is on record with the Government of Ontario or the Government of Canada or is known by you.

If you cancel this agreement, the supplier has fifteen (15) days to refund any payment you have made and return to you all goods delivered under a trade-in arrangement (or refund an amount equal to the trade-in allowance).

However, if you cancel this agreement after having solicited the goods or services from the supplier and having requested that delivery be made or performance be commenced within ten (10) days after the date this agreement is entered into, the supplier is entitled to reasonable compensation for the goods and services that you received before the earlier of the 11th day after the date this agreement was entered into and the date on which you gave notice of cancellation to the supplier, except goods that can be repossessed by or returned to the supplier.

If the supplier requests in writing repossession of any goods that came into your possession under the agreement, you must return the goods to the supplier’s address, or allow one of the following persons to repossess the goods at your address:

The supplier.

A person designated in writing by the supplier.

If you cancel this agreement, you must take reasonable care of any goods that came into your possession under the agreement until one of the following happens:

The supplier repossesses the goods.

The supplier has been given a reasonable opportunity to repossess the goods and twenty-one (21) days have passed since the agreement was cancelled.

You return the goods.

The supplier directs you in writing to destroy the goods and you do so in accordance with the supplier’s instructions.

Section 8.15      Costs and Legal Proceedings

(1)   The Renter agrees to pay all costs and expenses including legal fees on a solicitor and his own client basis of FIESTAville incurred with respect to any proceedings taken for the purpose of enforcing the rights and remedies of FIESTAville.